Friday, May 30, 2008

CAN A DOCTOR GET AWAY WITH DENYING FERTILITY TREATMENT TO AN UNMARRIED WOMAN?

In 1999, doctors in California refused to provide fertility treatment for Lupita Benitez, a lesbian who sought to have a child. The doctors think they should not have to follow the law that prohibits discrimination on the basis of sexual orientation if it conflicts with their religious beliefs. Benitez is represented by Lambda Legal, and staff attorney Jenny Pizer argued her case before the California Supreme Court this week. The newspaper report of the oral argument indicates that the court is likely to rule in Benitez's favor.

But even if Benitez wins, her case will go back to the trial court for a determination of WHY the doctors refused her treatment. The doctors say it was because she was UNMARRIED, and if they can show that was indeed the reason, they will still win! You see in 1999, it was unlawful for a California business to discriminate on the basis of sexual orientation. But it was NOT a violation of state law at the time to discriminate on the basis of marital status!

Marriage is the wrong dividing line between who is entitled to fertility treatment and who isn't. California has since amended its laws to make discrimination on the basis of marital status unlawful. Benitez's case proves that such laws are necessary!

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About Me

I have been working on gay and lesbian family law issues for more than 35 years. I teach at American University Washington College of Law, but for the 2011-2012 academic year and the Fall Semester 2012 I was the McDonald/Wright Chair of Law at UCLA. I have published many law review articles and book chapters. BEYOND (STRAIGHT AND GAY) MARRIAGE is my first book.